DOL Adds More Clarity Regarding Interaction of Regular and Expanded Paid Leave as FFCRA Enforcement Begins
Miller & Martin PLLC Alerts | April 21, 2020
Author: Stacie Caraway
By way of a quick reminder, the “30-day DOL grace period” (from the date the law was signed on March 18, NOT went into effect on April 1) ended on Friday, April 17, 2020. So, starting yesterday, the Department of Labor (DOL) has switched over from being “advisor” to “enforcer” regarding the Families First Coronavirus Response Act (FFCRA).
Before putting on their “enforcer” hat, however, the DOL did employers a final favor of clarifying the interaction between your “regular” PTO policies and the new paid sick leave and expanded FMLA leave, which is provided under the FFCRA.
Anyone who has taken the time during their “stay-at-home” lockdown to read the DOL FFCRA regulations may have believed COVID-19 was affecting their ability to comprehend the English language, as the descriptions regarding how “regular” vacation, sick leave, and other forms of paid time off (PTO) were supposed to interact with the new paid sick leave and expanded FMLA leave seemed to say completely different things from one section of the regulations to another.
So, the DOL (which created this confusion in the first place!) to the rescue. . .
In the latest (and perhaps final) addition to the FFCRA FAQ document on which Miller & Martin has been providing periodic updates through our series of coronavirus alerts, the DOL has clarified this interaction as follows:
- One thing we thought we “knew” from the DOL regulations that the DOL has confirmed in the new FAQ document additions is that an employee may elect, but the employer may not require, the use of either the new paid sick leave that is provided under the FFCRA or “regular” (employer-provided) PTO to cover the first two (otherwise unpaid) weeks of expanded FMLA leave.
The new FAQ document additions do clarify on this point that employees may not elect to use both “regular” PTO and paid sick leave concurrently/to cover the same periods during these first two (otherwise unpaid) weeks of expanded FMLA leave.
The new FAQ document additions also clarify that employees may only make this election with regard to “regular” (employer-provided) PTO if the PTO otherwise could be used to care for the employee’s child because their school or place of care is closed or their regular child care provider is unavailable due to a COVID-19 related reason (i.e., vacation or “personal leave” but most likely not “sick” or other “medical” leave).
- The DOL FAQ document also provides that an employer and employee can agree to allow an employee to use “regular” (employer-provided) PTO and paid sick leave under the FFCRA concurrently, but the employer cannot require that employees do so. (This makes sense when you recall that paid sick leave is only paid out at 2/3 the employee’s regular pay unless it is used for the employee’s own illness or quarantine, such that an employee may wish to use “regular” (employer-provided) PTO concurrently with paid sick leave.)
- The new FAQ document additions further (and perhaps surprisingly) provide that an employer may require an employee to use “regular” (employer-provided) PTO and expanded FMLA leave concurrently during the final ten weeks the employee is using expanded FMLA leave, if per the employer’s “regular” PTO policy the employee is normally able to use PTO to care for the employee’s child because their school or place of care is closed (or their regular child care provider is unavailable) due to a COVID-19 related reason. So, this interaction will likely involve the mandatory use of vacation or “personal leave” but typically not “sick” or other “medical” leave (which normally cannot be used to care for a child whose school, etc. is closed).
When “regular” (employer-provided) PTO and expanded FMLA leave run concurrently, the employee will receive his/her full pay while the employee is using expanded FMLA leave until the employee has exhausted the available PTO which is provided under the employer’s “regular” PTO policy.
Employers who decide to use this “required PTO use” option still can only obtain tax credits for 2/3 of the employee’s regular rate of pay, up to the daily and aggregate expanded FMLA limits provided in the FFCRA ($200 per day or $10,000 total).
If the employee exhausts all of his/her available employer-provided PTO before exhausting his/her 10 weeks of (2/3 paid) expanded FMLA leave, the employee will receive any remaining (2/3 paid) expanded FMLA leave up to these normal daily and aggregate limits.
- If you think you have all that straight, the new DOL FAQ document additions also provide a “supplement” option. Specifically, employers and employees may agree that the 2/3 pay provided under the FFCRA for expanded FMLA leave may be supplemented with “regular” (employer-provided) PTO, so as to allow the employee to be paid 100% of their regular pay while they are using expanded FMLA leave. (So, employers can mandate this or may agree to it, but employees may not choose to supplement their 2/3 pay during an expanded FMLA leave with “regular” PTO.)
On a final note, if anyone has questions regarding how to compute a particular employee’s average rate of pay for purposes of being able to pay 2/3 or their full “regular pay” under the FFCRA, the DOL also has added 6 pages of additional explanation and examples on how to compute this in some very complicated scenarios (see items 75 and 80 – 84 of the DOL FFCRA FAQ document).
As always, please feel free to contact any member of our Labor & Employment Law Practice Group if you have any questions regarding the application of the FFCRA to your workforce or any other COVID-19-related issues. Also, don’t forget the other COVID-19 updates and articles which are available in our Coronavirus Resources section regarding everything from the CARES Act and SBA loan forgiveness to the new OSHA regulations for essential workplaces.
Here’s to hoping the light at the end of the tunnel is...well, not an oncoming train! And that the end of this “coronavirus war” is in sight. Hang in there!